Sex abuse lawsuit going back to court

MANSFIELD – Grace Brethren Church and its pastor remain off the hook for damages from a 2009 civil lawsuit brought by the family of a 9-year-old girl who was sexually abused by a 75-year-old man.

But convicted sex abuser David L. Harvey’s son and daughter could still face scrutiny over whether they might owe the victim’s family compensation.

And now-retired Richland County Common Pleas Judge James Henson’s decision to require Harvey to pay the victim up to $175,000 — rather than the $350,000 the jury recommended — has been overturned.

The Fifth District Court of Appeals this week released a decision reversing some decisions and remanding the lawsuit back to Richland County Common Pleas Court.

Harvey, now 80, was convicted in 2010 of two third-degree felony counts of gross sexual imposition. He is incarcerated in Southeastern Correctional Institution.

In 2009, the parents of two children filed civil lawsuits against Harvey and four other defendants, alleging that Harvey had harmed children, and that people who knew about the potential for abuse failed to warn the parents.

David Harvey, then of 2061 Ranchwood Drive, was named as a defendant, along with two of his adult children, Dianna Kochheiser, 1109 W. Hanley Road, and Russ Harvey of Galion; along with Grace Brethren Church, 531 Marion Ave.; and its pastor, the Rev. J. Hudson (Sonny) Thayer.

The lawsuits — eventually consolidated — claimed that a girl under age 10 was abused for 17 months and a boy under the age of 10 was abused for 3½ years.

Both the church and pastor were released as defendants before trial, after Judge Henson ruled neither had knowledge of the alleged abuse. After a jury trial, the court granted a directed verdict releasing Harvey’s two adult children from liability. Henson entered a $175,000 judgment against David Harvey.

The mother of the girl has appealed, through attorney Darrell Heckman, citing nine grounds for error.

The family contends Henson erred when he released the church and pastor as defendants, arguing that Thayer knew of Harvey’s activities since he was allegedly counseling him for sexual misbehavior. Heckman said the pastor neglected a duty to inform the mother of the girl of the activity and report it to law enforcement.

Henson had struck two affidavits from jury consideration, as hearsay. In one, Ken Harvey, a son of David Harvey, said he knew the pastor was counseling his father about the incidents because in 2009, his father told his mother that had happened, when Ken Harvey was in the home. In another, a woman present at Harvey’s criminal competency hearing said she believed Thayer had counseled Harvey about sexual abuse of the victim, based on a conversation between a former pastor at the church and the victim’s family.

But the Rev. Thayer and church had filed a motion saying the pastor never engaged in any conversations or counseling with David Harvey concerning alleged sexual misconduct with the girl.

The Fifth District Court appeals panel said the court record was devoid of any evidence establishing that Pastor Thayer knew Harvey was babysitting the female victim. “In the abcense of such evidence we find the pastor did not have a duty to warn (the girl’s) mother,” the ruling said.

In the appeal, the victim’s attorney also had argued two of David Harvey’s adult children knew he had abused children in the past, and had a duty to warn the mother not to bring her daughter to Harvey’s house for babysitting.

The Fifth District Court found merit in Heckman’s contention the judge should not have granted a directed verdict in favor of Kochheiser and Russell Harvey.

Those two defendants “insist they had no legal obligation to report Harvey’s past abuse to (the girl or her parents),” Judge William B. Hoffman wrote. “We disagree. ... Kochheiser and Russell Harvey are Harvey’s adult children and they acted as his power of attorney. They exercised some control over Harvey’s affairs,” the ruling said.

“Kochheiser and Russell Harvey were two of the few people who knew of Harvey’s prior sexual abuse of minors. They were aware Harvey and his wife were babysitting (the girl) at least one year prior to (her) disclosure of the abuse. In fact, they urged Harvey not to babysit (her). They were also aware the only other adult present, their mother, Carol Harvey, was blind and was unable to protect (her),” Hoffman wrote.

The Fifth District Court also ruled Judge Henson erred in granting a judgment different than the jury verdict.

The jury had asked for damages against David Harvey as $175,000 on count one; another $175,000 in damages on count two; plus court costs and attorney fees. But Henson’s final judgment granted just $175,000 plus costs against Harvey, also awarding attorney fees set at 30 percent of any amount recovered.